Tilghman C. J.
The question in this case is, whether the defendant in error, an ordained deacon, and an elder in the Methodist Episcopal church, is subject to the penalties of the act of the 29th of March 1803, for not serving in the office of a guardian of the poor, to which he was elected. There is no doubt but the, commonwealth has a right to insist on the service of every member of the community, in any capacity in which it may be thought proper to exact it. But unless the intention is clearly expressed, it is not to be supposed, that services were meant to be exacted contrary to ancient usage, and involving incompatible duties. Every country has its common, law. Ours is composed partly of the common law of England, and partly of our own usages. When our ancestors emigrated from England, they took with them such of the English principles as were convenient for the situation in which they were about to place themselves. It required time and experience to ascertain how much of the English law would be suitable to this country. By degrees, as circumstances demanded, we adopted the English usages, or substituted others better suited to our wants, till at length, before the time of the revolution, we had formed a system of our own, founded in general on the English constitution, but not without considerable variations. In nothing was this variation greater than on the subject of religious establishments. The minds of William Penn and his followers would have revolted at the idea of an established church. Liberty to all, but preference to none; this has been our principle, and this our practice. But although we have had no established church, yet we have not been want[559]*559ing in that respect, nor niggards of those privileges, which seem proper for the clergy of all religious denominations. It has not been our custom to require the services of clergymen in the offices of constables, overseers of the highways, or of the poor, jurors, or others of a similar nature. Not that this exemption is founded on any act of assembly, but on.an universal tacit consent. In the nature of things, it seems fit, that those persons who devote their lives to the service of God, and the religious instruction of their brethren, should be freed from the burthen of temporal offices, which would but distract their attention, and may be better filled, by others. This sentiment is not peculiar to us. We find it in the English common law, though from motives of policy restricted perhaps to the established church. It is said by Lord Coke, in 2 Inst. 3, 4, to be a principle of the ancient common laxo, that the clergy shall not be implicated in secular business; and that if a man holding lands, by virtue of which he is bound to serve in temporal offices, become an ecclesiastical person in holy orders, he ought not to be elected to such office, and if he is, he may have the king’s writ for his discharge. And in the Register of Writs 187, and Fitz. N.B. 175, the form of the writ is to be found. It appears then, that what the English have applied to their established church, we in conformity to our principles of religious liberty, have granted to the clergy of all professions. Nor is the privilege confined to common law offices. It is proved by the cases cited in the argument to which I refer, that the same construction has been held with respect to offices created, by statute, in which there is no express exemption of the clergy. The rule of construction is this: unless the clergy are mentioned, it shall not be supposed that it was intended to include them. If we apply this rule to the act of assembly in question, the case will be easily, decided. The act directs that a certain number of substantial householders shall be elected, but is altogether silent as to any exemptions. We must presume then, that it was not intended to include persons who, from ancient usage, were exempt from this kind of service, or who held other offices incompatible with the duty of a guardian of the poor. Without such presumption, how is it, that judges and attorneys at law are privileged? They have no express privilege by that or any other law, but in [560]*560sound construction they are excepted from the general words of the act. It has been contended, however, that granting this to be the true construction of the law, yet Mr. Greene is subject to the penalty, because he has forfeited his privilege. It is true, that every man may waive his privilege. We have instances in this state of ordained clergymen holding the offices of register of wills and prothonotary of the Court of Common Pleas, and in England they very commonly execute the office of justice of the peace. But how has Mr. Greene waived his privilege? He has become what is called in the Methodist church, a heal or located minister, (one that does not travel), and he has kept a shop for mercantile business, which has been principally managed by his wife; but he has constantly officiated as a minister of the gospel in this city. His services indeed have not lately been so weighty as formerly, but he is subject to an increase of them at any moment, according to the discipline of his church. I am not for measuring too nicely the length and breadth of clerical duties and employments. While a man is an acting minister, it is sufficient to entitle him to the privileges of his order. Too minute a scrutiny on this point, would involve us in unnecessary and unprofitable difficulties. Different societies require from their ministers different degrees of service. In all it has been deemed decent and proper, that the clergy should devote part of their time to the instruction of youth in seminaries of learning, and in some they are permitted to pursue any business to which they are inclined, without any restriction. I would leave it to each society to regulate its own clergy; and until the legislature shall think proper to express its will to the contrary, I shall be for extending equal privilege to the mitred bishop and the unadorned friend.
My opinion is, that the Court of Common Pleas were right in their construction of the act of assembly, and therefore their judgment should be affirmed.
Yeates J.
The words of the second section of the act of the 29th of March 1803, though general in their nature, must be restrained by a reasonable construction. Although the guardians of the poor are to be elected out of substantial housekeepers, who are citizens, I should suppose that it was not the intention of the law, that a woman should be elected, while there were other fit persons to fill the office.
[561]*561At common law, I apprehend no persons in holy orders eould be compelled to serve in a temporal office, upon the ground that their time should be devoted to the sacred duties of their station, and their minds abstracted from secular affairs, as far as is possible. An entire abstraction cannot be reasonably-expected. Means must be procured for the support of a family; and frequently both here and in Great Britain, the cultivation of land and instruction of youth are recurred to for that purpose. In this point of view I regard the defendant’s keeping a dry good store by his wife or a clerk. If independently of this circumstance, he would be exempted from service in this office, the pursuing of such an occupation would not abridge that right.
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Tilghman C. J.
The question in this case is, whether the defendant in error, an ordained deacon, and an elder in the Methodist Episcopal church, is subject to the penalties of the act of the 29th of March 1803, for not serving in the office of a guardian of the poor, to which he was elected. There is no doubt but the, commonwealth has a right to insist on the service of every member of the community, in any capacity in which it may be thought proper to exact it. But unless the intention is clearly expressed, it is not to be supposed, that services were meant to be exacted contrary to ancient usage, and involving incompatible duties. Every country has its common, law. Ours is composed partly of the common law of England, and partly of our own usages. When our ancestors emigrated from England, they took with them such of the English principles as were convenient for the situation in which they were about to place themselves. It required time and experience to ascertain how much of the English law would be suitable to this country. By degrees, as circumstances demanded, we adopted the English usages, or substituted others better suited to our wants, till at length, before the time of the revolution, we had formed a system of our own, founded in general on the English constitution, but not without considerable variations. In nothing was this variation greater than on the subject of religious establishments. The minds of William Penn and his followers would have revolted at the idea of an established church. Liberty to all, but preference to none; this has been our principle, and this our practice. But although we have had no established church, yet we have not been want[559]*559ing in that respect, nor niggards of those privileges, which seem proper for the clergy of all religious denominations. It has not been our custom to require the services of clergymen in the offices of constables, overseers of the highways, or of the poor, jurors, or others of a similar nature. Not that this exemption is founded on any act of assembly, but on.an universal tacit consent. In the nature of things, it seems fit, that those persons who devote their lives to the service of God, and the religious instruction of their brethren, should be freed from the burthen of temporal offices, which would but distract their attention, and may be better filled, by others. This sentiment is not peculiar to us. We find it in the English common law, though from motives of policy restricted perhaps to the established church. It is said by Lord Coke, in 2 Inst. 3, 4, to be a principle of the ancient common laxo, that the clergy shall not be implicated in secular business; and that if a man holding lands, by virtue of which he is bound to serve in temporal offices, become an ecclesiastical person in holy orders, he ought not to be elected to such office, and if he is, he may have the king’s writ for his discharge. And in the Register of Writs 187, and Fitz. N.B. 175, the form of the writ is to be found. It appears then, that what the English have applied to their established church, we in conformity to our principles of religious liberty, have granted to the clergy of all professions. Nor is the privilege confined to common law offices. It is proved by the cases cited in the argument to which I refer, that the same construction has been held with respect to offices created, by statute, in which there is no express exemption of the clergy. The rule of construction is this: unless the clergy are mentioned, it shall not be supposed that it was intended to include them. If we apply this rule to the act of assembly in question, the case will be easily, decided. The act directs that a certain number of substantial householders shall be elected, but is altogether silent as to any exemptions. We must presume then, that it was not intended to include persons who, from ancient usage, were exempt from this kind of service, or who held other offices incompatible with the duty of a guardian of the poor. Without such presumption, how is it, that judges and attorneys at law are privileged? They have no express privilege by that or any other law, but in [560]*560sound construction they are excepted from the general words of the act. It has been contended, however, that granting this to be the true construction of the law, yet Mr. Greene is subject to the penalty, because he has forfeited his privilege. It is true, that every man may waive his privilege. We have instances in this state of ordained clergymen holding the offices of register of wills and prothonotary of the Court of Common Pleas, and in England they very commonly execute the office of justice of the peace. But how has Mr. Greene waived his privilege? He has become what is called in the Methodist church, a heal or located minister, (one that does not travel), and he has kept a shop for mercantile business, which has been principally managed by his wife; but he has constantly officiated as a minister of the gospel in this city. His services indeed have not lately been so weighty as formerly, but he is subject to an increase of them at any moment, according to the discipline of his church. I am not for measuring too nicely the length and breadth of clerical duties and employments. While a man is an acting minister, it is sufficient to entitle him to the privileges of his order. Too minute a scrutiny on this point, would involve us in unnecessary and unprofitable difficulties. Different societies require from their ministers different degrees of service. In all it has been deemed decent and proper, that the clergy should devote part of their time to the instruction of youth in seminaries of learning, and in some they are permitted to pursue any business to which they are inclined, without any restriction. I would leave it to each society to regulate its own clergy; and until the legislature shall think proper to express its will to the contrary, I shall be for extending equal privilege to the mitred bishop and the unadorned friend.
My opinion is, that the Court of Common Pleas were right in their construction of the act of assembly, and therefore their judgment should be affirmed.
Yeates J.
The words of the second section of the act of the 29th of March 1803, though general in their nature, must be restrained by a reasonable construction. Although the guardians of the poor are to be elected out of substantial housekeepers, who are citizens, I should suppose that it was not the intention of the law, that a woman should be elected, while there were other fit persons to fill the office.
[561]*561At common law, I apprehend no persons in holy orders eould be compelled to serve in a temporal office, upon the ground that their time should be devoted to the sacred duties of their station, and their minds abstracted from secular affairs, as far as is possible. An entire abstraction cannot be reasonably-expected. Means must be procured for the support of a family; and frequently both here and in Great Britain, the cultivation of land and instruction of youth are recurred to for that purpose. In this point of view I regard the defendant’s keeping a dry good store by his wife or a clerk. If independently of this circumstance, he would be exempted from service in this office, the pursuing of such an occupation would not abridge that right.
But it has been urged by the plaintiffs in qjror? that the privilege contended for by the defendant, exists by the common law of England only in the cases of clergymen of the established church, and that the privilege as to other ministers of religion is granted by statutes. It is true that by art. 9. sec. 3., of our constitution, it is declared, “ that no preference “ shall ever be given by law to any religious establishments “ or modes of worship.” All religious societies are placed on the same broad equal ground, and the only test of office is the acknowledgment of the being of a God, and a future state of rewards and punishments. But if the exemption of clergymen of the established church in England from the burden of temporal offices, is founded on the solid principles of moral fitness, decency and public policy, is it not more correct to assert, that ministers of religion of all denominations amongst us should participate in that privilege, than that it should wholly cease to exist? It is of great importance to the peace and good order of society, that the character of public ex-horters of our religious duties, should be held in the highest respect and veneration. Their influence on the conduct of the people at large will be impaired by compelling them to serve as guardians of the poor, constables, and other petty officers.
The uniform opinion which has prevailed as to clergymen in general not being compellable to serve as jurors, fortifies the defendant’s pretensions in the present instance. It has subsisted both before and since the American revolution. The provisions of the act of the 29th of March 1805, as to the selection of jurors, are general in their nature, and contain no exceptions. The sheriff and commissioners are enjoined to-[562]*562put into the wheel the names of sober and judicious persons, and a fine not exceeding twenty dollars is imposed on those who shall refuse to serve as jurors. The burthen is intended to fall equally on every citizen fit to discharge that duty. And yet both before and since the passing of that act, public ministers of all denominations returned as jurors, have uniformly been excused by the Court on their application. There is a seeming incompatibility of character, when we unite the divine and the juror, I may be permitted to say the divine owes superior duties to society. Whence is it that the judges of other Courts would be excused from serving as jurors in this Court, or as guardians or overseers of the poor, supervisors of the highways, or constables? Upon what ground would the professors of the law rest their claim to exemption, when returned to either of these offices? I answer, on the same ground of incompatibility of character, and of their owing higher duties to the community, which public policy requires the faithful discharge of in the first instance. Indeed we ourselves would have no other plea to recur to, when called upon by another Court to fulfil the duties of either of those offices. The faithful pastor, who conscientiously watches over his flock, and teaches them their duties to their Creator and fellow men, will have but little leisure to attend to temporal pursuits.
I am of opinion that the judgment of the Court of Common Pleas should be affirmed.
Brackenridge J.
There is no trace of the prlvileglum elericale in the New 1’estament, in the epistles, in the fathers, in the history of early Christianity. It was not until the Roman empire became Christian, that persecution ceased and privilege began. But from that time it made a very rapid progress. On the clearing away of the mist of the dark ages, we find it settled down with the jure divino right of tithes, and endless immunities. The church establishment in England has become a part of the common law. But was the common law in this particular or any part of it, carried with us in our emigration and planting a colony in Pennsylvania? Not a particle of it. On the contrary, the getting quit of the establishment and ecclesiasiical tyranny and immunity, was a great cause of the emigration. Ail things in this particular were reduced to primitive Christianity, and we took a new [563]*563state. A teacher of religion of any denomination was unknown to our laws; no clerical exclusion, no immunity. But it has been customary with the' people not to impose secular employments on clerical functionaries. I believe the speakers in assemblies amongst the people called Friends, claim no such exception. With other denominations, even where the cure of souls becomes an employment, it is matter of courtesy not to impose; but immunity is not a claim of right. The act of assembly proves this, which exempts in the case of militia service. This is not in affirmance of a common law known to us, it is introductory of a new privilege. The exemption proves a preceding obligation. Exceptio unius exclusio est alterius. In our commonwealth there is no exclusion from office to a clergyman, from public trusts; and why an immunity? S>ui sentit commodum, sentiré debet et onus.
Why talk of an incompatibility? There is no constitutional incompatibility, no legal impediment, nothing in the nature of the case. All trades and occupations might as well plead avocations, and set up an incompatibility. In a state where every individual may constitute himself a public teacher of religion, and allege the cure of souls, the plea of incompatibility would work a general inconvenience. If indulged to the full extent, and what is there to limit it, it would work a general inconvenience. But there is no law or usage to justify such a plea. I will venture to say it is the first time that it was ever heard of in a court of justice in Pennsylvania. It cannot be allowed, and my judgment is for the plaintiffs.
Judgment affirmed.